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Book Review Essay

The Making of the Attorney General: John Mitchell and the

Crimes of Watergate Reconsidered

Gerald Caplan*

I. INTRODUCTION

Shortly after I resigned my position as General Counsel of the District of

Columbia Metropolitan Police Department in 1971, I was startled to receive a

two-page letter from Attorney General John Mitchell. I was not a Department of

Justice employee, and Mitchell’s acquaintance with me was largely second-hand.

The contents were surprising. Mitchell generously lauded my rather modest role

“in developing an effective and professional law enforcement program for the

District of Columbia.” Beyond this, he added, “Your thoughtful suggestions have

been of considerable help to me and my colleagues at the Department of Justice.”

The salutation was, “Dear Jerry,” and the signature, “John.” I was elated. I

framed the letter and hung it in my office. There it remained for several years

until, following Mitchell’s felony convictions, it engendered double-entendres

and became the butt of humor.

Mitchell’s accolades were not entirely formulaic. The Nixon Administration

had poured resources into the criminal justice system in the District of

Columbia.1 The Police Department was better trained, better equipped, greatly

enlarged, and supported by a newly created General Counsel’s Office, which I

headed. Its creation implemented a best practices recommendation of President

Lyndon Johnson’s Commission on Law Enforcement and Criminal Justice,

aimed at making enforcement more law-conforming and effective.2 But it was

not only the police who benefited from administration largesse.3 The entire

criminal justice system of the District, including the bail agency, the public

defender, and the corrections department, were the beneficiaries of generous

funding. President Nixon saw the District of Columbia as an ideal setting to

implement his campaign promises to reduce crime.4 Thus, the Administration

trumpeted the increase in sworn police personnel and its get-tough legislative

proposals, such as preventive detention of dangerous suspects and no-knock

* Professor of Law, University of the Pacific, McGeorge School of Law. For their helpful suggestions, I

am indebted to my colleagues, Professors Brian Landsberg and Michael Vitiello, and to Professor G. Robert

Blakey, Judge Geoffrey Alprin, and Jerry V. Wilson.

1. See JAMES ROSEN, THE STRONG MAN 72-73 (2008).

2. See Gerald Caplan, Reflections on the �ationalization of Crime, 1964-1968, 1973 ARIZ. ST. L.J. 583,

591 (1973) (providing background information about the Commission on Law Enforcement and Administration

of Justice).

3. See id. at 616 (outlining the 1968 budgetary distribution).

4. ROSEN, supra note 1, at 72.

2010 / John Mitchell and the Crimes of Watergate Reconsidered

312

entries for serving drug-related search warrants, and avoided taking credit for the

substantial improvements to the criminal justice system as a whole, which it

fostered.5

The first time I met Mitchell was in the midst of an anti-war demonstration at

the Department of Justice on November 13, 1969. I was charged with bringing a

written message to Mitchell at his office in the Department of Justice. A radical

group, the “Yippies, . . . had secured a three-hour picketing permit to protest the

trial of their leader, Abbie Hoffman, and other members of the Chicago Eight.”6

Several thousand unruly protesters surrounded the Department, chanting “One,

two, stop the trial! Three, four, stop the war! Five, six, kill the pigs! Seven, eight,

smash the state!”7 We were concerned. Should the protestors turn violent or

attempt a forcible entry, the police would be unable to turn them away and many

injuries would result. Moreover, there was reason to fear that violence would

break out elsewhere in the District. A bridge might be blown up; there might be

looting; some marchers might be armed.

When I arrived, I was escorted into the Attorney General’s conference room.

Mitchell was sitting calmly at the head of a very long table with about twenty

high-level agency representatives in attendance. John Ehrlichman, the President’s

Chief Domestic Advisor, sat to his immediate left. Mitchell paused the meeting

when I entered the room, looked my way, smiled, asked my name, and thanked

me for my help. This show of courtesy during a time of great stress, I was to

learn, was, like his letter to an outgoing employee, typical of the warmth and

consideration that Mitchell extended to his colleagues and subordinates. For me,

a young attorney working in the midst of disorder and danger, the Attorney

General’s soft-spoken, pipe-in-hand, imperturbable manner was reassuring.

Things were under control; we in law enforcement were doing the right thing.

And, in fact, this was so. The demonstrations in the city were largely

peaceful. The District of Columbia Police, supported by other enforcement

agencies and the military, acted with remarkable restraint. Moreover, the

demonstration leadership, in particular their attorney, were forthcoming about

when, where, and what they intended to do.8 The only significant unexpected

occurrence was the intentional smashing of numerous windows and glass doors

by some demonstrators.9 Several hundred were arrested without difficulty. There

were no charges of police abuse or excessive force, though there were justified

complaints about the excessive use of tear gas.10 The system worked the way it

was supposed to work, which was no small achievement given the stress it was

5. Id. at 72-73.

6. Id. at 92.

7. Id.

8. See id.

9. See ROSEN, supra note 1, at 94.

10. Id. at 94-95 (describing the specific use and general effects of tear gas).

McGeorge Law Review / Vol. 41

313

under and the potential for calamity.11

Now, nearly forty years after this demonstration and nearly as many since the

foiled break-in at the luxury Watergate headquarters of the Democratic Party, a

full-length, birth-to-grave biography of John Mitchell, entitled, The Strong Man,

has been published.12 It is, as I had hoped, revisionist, offering a more generous

evaluation of the man and his service in office during those unsettling times

when the Vietnam War and anti-war protests divided the nation and tested our

democratic ways. Nonetheless, it was a painful read, chronicling Mitchell’s

downfall and the lawlessness of the President and his aides.

But for Watergate, Mitchell’s legacy would likely be little more than a

footnote to the Nixon Presidency. He would be remembered for his skill as a

campaign manager in guiding Nixon through two remarkably successful

campaigns for the presidency in 1968 and 1972 and for being the Attorney

General who reset the scales of justice to favor law enforcement at a time when it

was needed.13 Yet Mitchell’s entire distinguished career, from Wall Street to

Washington, has been reduced to but a prelude to scandal.14 Being the highest-

ranking federal official convicted of a felony is his enduring commemoration.

Although Mitchell suffered greatly—imprisoned, disbarred, disgraced, and

ostracized—he is not remembered sympathetically.15 The triggering events of his

downfall were largely of his own making. They were just deserts, not tragedy.

James Rosen’s account of Mitchell’s life is informed by documents that were

unavailable to other chroniclers of the Nixon years or overlooked in the huge

cache of official records, such as the Nixon White House tapes.16 Much of it is

favorable to Mitchell or can reasonably be so interpreted. Some of it is eye-

opening, even to those, like me, who followed the breaking events of the day.

Most readers will find Rosen’s effort to prove Mitchell innocent of the most

serious allegation made against him—that he approved the break-in at

Watergate—persuasive. Rosen’s stated intent in writing the biography is to set

11. Memorandum from Jerry V. Wilson, Former Police Chief, D.C. Police Dep’t, to author (Mar. 19,

2009) (on file with the McGeorge Law Review). “I too was displeased by the overuse of tear gas, then and

frequently thereafter. I also was irritated by the small number of arrests.” Id. at 5 n.10.

12. ROSEN, supra note 1.

13. Id. at xv.

14. See generally id. at 14-114 (detailing the career of John Mitchell).

15. Id. at 440-98 (describing Mitchell’s later years).

16. Rosen’s research is remarkable for its vigor, thoroughness, and, most notably, its yield of fresh and

relevant information. Rosen justifiably claims that his account is “not your father’s Watergate.” Id. at xxiv.

Surprisingly, he managed to scour “whole archives of contemporaneous documents—[that] had never before

been mined, or even requested for inspection, by the armies of earlier scholars. These included the internal files

of the staff lawyers . . . in closed-door executive session.” Id. at xxiii. In addition to digesting the voluminous

secondary literature on Nixon, Watergate, and the convulsive events of the 1960s and the daily-deadline

reportage of the Washington press corps, Rosen aggressively employed the Freedom of Information Act to

“pr[y] loose hundreds of thousands of previously undisclosed documents and tape recordings.” Id. Rosen may

be the first scholar to make “the long march, on microfiche, through every sheet of Haldeman’s and

Ehrlichman’s 200,000 pages of yellow-pad notes from their meetings with President Nixon.” Id.


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the record straight;17 in so doing, he brings to light unsettling evidence of

Mitchell’s poor judgment, misbehavior, and personal flaws. But his story of

Mitchell’s life, viewed as a whole, is nonetheless an advocate’s account. Rosen’s

finger is on the scale, interpreting facts and drawing inferences unduly favorable

to Mitchell. This ordinarily would be a basis for objection, but in context, it does

not detract from the work. One can read the book, disagree with its conclusions,

and still come away with a rich, enlarged understanding, because Rosen

ordinarily positions his reader to second-guess him. Rosen is not the first

biographer to develop a fondness for his subject, and Mitchell, however stone-

faced and forbidding in public, was, in person, likeable (and indeed well-liked),

good-humored, caring, and thoughtful.

Mitchell, by all accounts, was a private person, unforthcoming and

unresponsive in situations that called for explanation. His brother said: “‘I don’t

think anyone really knew him. He lived within himself very much.’”18 Rosen

finds Mitchell “notorious for his inscrutability,”19 and Nixon Presidential Aide

John Ehrlichman described him as “‘taciturn, aloof, a sort of Wall Street Gary

Cooper.’”20 Although every biographer observes discordant features in his

subject—tendencies and predispositions that pull him in different ways—

Mitchell’s self-containment poses a special challenge, that of determining which

elements are representative and configuring them in some plausible harmony.

And, as with biographical production generally, there are offstage happenings of

which the author knows nothing, and which, if known, would promote a more

accurate depiction. My account of Mitchell’s life differs in important particulars

from that of Rosen. We share the same purpose, making sense of the heart-

rending failure of an otherwise decent man to discharge the duties of his office.

My analysis has led me, regrettably, to hold Mitchell more accountable.

What President Gerald Ford, Nixon’s successor in office, referred to as “our

long national nightmare”21 “began, as a matter of public record, in the early

morning hours of June 17, 1972.”22 District of Colmbia Police Officers arrested

five men inside the headquarters of the Democratic National Committee at the

Watergate office complex.23 These were not ordinary burglars. They were

dressed in “business suits and rubber gloves, carrying cameras[] [and]

17. National Review Online, Interview: The Book on Mitchell, June 27, 2008, http://article.national

review.com/?q=ZjgyNDQ3OWNiMmM0OWNmZGJkYzBiNjY3NzRIYWM1MTA (on file with the McGeorge Law

Review).


19. Id. at xxiv.

20. Id. at 43 (quoting JOHN EHRLICHMAN, WITNESS TO POWER: THE NIXON YEARS 75 (1982)).

Ehrlichman also remarked, “‘[Later] I began to see that he wasn’t as gruff and remote as he appeared. . . . [H]e

was withdrawn and quiet, but hardly forbidding.’” Id.

21. Id. at xxv.

22. Id. at xvi.

23. Id.


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sophisticated electronics equipment.”24 Police quickly linked them to Howard

Hunt, a former CIA officer then on the White House payroll, and to Gordon

Liddy, a former White House employee, then the General Counsel to the

Committee for the Re-Election of the President (CRP), which Mitchell chaired.25

Prior to trial, at the instigation of John Dean (then-acting counsel to the President

and previously Mitchell’s subordinate at the Department of Justice), the five

began receiving secret payments: hush money to buy their silence as part of a

cover-up attempt.26 Dean was aided by Jeb Magruder, Mitchell’s deputy at the

CRP.27

The cover-up struggled along for several months, then crashed suddenly

when one of the burglars, James McCord, “broke ranks” with his co-defendants

(all of whom had pleaded guilty) and wrote the trial judge, John Sirica, a tell-all

letter, which he read in open court.28 McCord’s disclosures implicated Dean and

Magruder and prompted them to negotiate favorable plea bargains in exchange

for their testimonies.29 Their testimonies led to indictments for perjury and

obstruction of justice against the President’s ranking aides, including White

House Chief of Staff, H.R. Haldeman; Chief Domestic Advisor, John

Ehrlichman; and former Attorney General, John Mitchell.30 In the summer of

1973, investigators discovered that “Nixon had surreptitiously recorded virtually

all his meetings and phone calls, from February 1971 onward.”31 The tapes

revealed Nixon’s early awareness and sporadic participation in the cover-up and

induced his resignation in August 1974.32 A month later, President Ford pardoned

him “for all crimes he committed ‘or may have committed’ while in office.”33

Subsequently, investigators discovered that Hunt and Liddy had engineered

an earlier break-in at the office of Daniel Ellsberg’s psychiatrist in an

unsuccessful attempt to determine whether it was Ellsberg who leaked classified

documents concerning conduct in Vietnam, the Pentagon Papers, to the press.34

These events ballooned into a complex series of scandals, triggering a responsive

succession of Congressional investigations and the creation of the Watergate

Task Force, headed by an independent prosecutor.35 The investigations resulted

24. ROSEN, supra note 1, at xvi.

25. Id. at xvii.

26. Id.

27. Id.

28. Id. at xvii-xviii.

29. Id. at xviii.

30. ROSEN, supra note 1, at xviii.

31. Id.

32. Id.

33. Id.

34. Id.

35. Id.


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in over fifty convictions of individuals and nineteen convictions of

corporations.36 John Mitchell was one of those convicted.37

II. TALL TALES

Perhaps the most revelatory source about Mitchell’s life prior to law school

is Mitchell himself, who, as Attorney General, recounted events from his youth.38

He told a �ewsday reporter that he and his brother witnessed a fire burning at a

school near where they lived: “‘Whole damned school went.’”39 Recalling this

event, “Mitchell began to chuckle, softly at first, then uncontrollably, until he

was ‘half bent’ in laughter and brought back into the moment only by a coughing

fit.”40 This memory prompted another: “‘You know I burned down the house in

Blue Point.’”41 According to Mitchell, he lit some sparklers in his possession on a

fourth of July day and accidentally set fire to the porch.42 These twin

recollections would be unremarkable but for the fact that both are false.43 The

first was “a complete fiction” and the second nearly so—only “a couple of the

leaves [under the porch] caught fire.”44 Other fictions related to athletic

prowess.45 Mitchell had been a good high school athlete, but he was neither the

professional golfer he claimed to have been on The Dick Cavett Show nor a

hockey player for the New York Rangers as cited in his obituary.46 Nor was he

the naval war hero that his lifelong friend, Richard Moore, proclaimed in his

eulogy, no doubt relying on Mitchell as his source:47

“[T]he only thing that most people know about [Mitchell’s] war record is

that John F. Kennedy served under him. . . . I never knew until yesterday

that he received the Navy’s treasured award for gallantry in combat—the

Silver Star. Nor did I know that he had been twice wounded, receiving

two purple hearts.”48

36. ROSEN, supra note 1, at xviii-xix.

37. Id. at xix.

38. Id. at 2-9 (recounting stories of Mitchell’s early life).

39. Id. at 2

40. Id.

41. Id.


43. Id. at 3.

44. Id.

45. Id. at 7-8 (providing some accounts of Mitchell’s claims of athletic prowess).

46. Id.

47. Id. at 14-15.

48. ROSEN, supra note 1, at 15 (quoting the eulogy that Richard Moore delivered).


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In fact, Kennedy did not serve under Mitchell and, according to naval files,

Mitchell was never decorated.49

Mitchell’s motive in telling these whoppers was likely the commonplace one

of impressing others or pleasurably imagining events as he would like them to

have been. But, in hindsight, given Mitchell’s multiple convictions for perjury

and his embroilment in factual disputes throughout his career, they seem

portentous. Through numerous Congressional hearings, prosecutorial

investigations, and criminal trials, Mitchell told lies and stuck to them, even

when contrary evidence was indisputable. The most striking illustration relates to

Mitchell’s authorization of a cluster of FBI requests for wiretaps to detect

security leaks to the media.50 Four reporters and a dozen government officials

were targeted.51 Although these wiretaps were later determined to be lawful and

were perhaps understood that way at the time, Mitchell resolutely denied

authorizing them.52 Two days after Mitchell’s first denial, acting FBI Director

William Ruckelshaus announced at a news conference that records of the

wiretaps had been retrieved from the safe of Presidential Aide John Ehrlichman

and that these records showed that Mitchell had, in fact, personally approved the

requests (and had even erroneously assured then-FBI Director, J. Edgar Hoover,

that no such records existed).53 Beyond this, Ruckelshaus personally informed

Mitchell in a letter marked “top secret” that the FBI had discovered fifteen

requests for authorization that Mitchell had approved.54 On one request, Mitchell,

in his own handwriting, ordered the tap to be “installed as soon as possible”; on

another, he indicated that the request came from “‘a higher authority’”—

presumably a reference to Nixon.55 Nonetheless, Mitchell repeated his denials:

“‘A pipe dream,’ he told Time in February 1973.”56 A year later, he again denied

to a House of Representatives committee and separately told his trusting deputy,

Richard Kleindienst, that he had not authorized the warrants.57 Beyond these

denials, Mitchell made several others, revealed in previously unpublished,

classified interrogations of Mitchell by Watergate prosecutors and House of

Representatives investigators. In all, Mitchell perjured himself on five separate

occasions by denying his authorization of these warrants. Remarkably, Mitchell’s

recklessness and bravado did not result in prosecution.58

49. Id. at 15-16.

50. Id. at 149-51 (providing background information on the wiretapping program).

51. Id. at 150.

52. Id. at 151.

53. Id. at 152.


55. Id.

56. Id. at 153.

57. Id. at 153-54.

58. Id. at 495.


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III. THE PATH TO RICHARD NIXON

Following graduation from the evening division of Fordham University’s

law school, Mitchell married his high school sweetheart, Bette Shine.59 It was, at

least on Mitchell’s part, love at first sight.60 The first time he saw her, he told a

friend, “‘That’s the woman I’m going to marry.’”61 Rosen describes her as “an

entrancing blonde, with a trim, athletic figure . . . and a glamorous smile,” who

had played basketball for her high school team.62 They married after Mitchell

graduated from law school and they stayed married for twenty years.63 The

marriage likely experienced strains over time, though Bette viewed their divorce

as something of a mid-life crisis for her middle-aged husband: “‘John just walked

in one morning and asked for a divorce.’”64 Nonetheless, the divorce was

amicable.65 Mitchell, recalling his promise to take care of her forever, generously

“agreed to pay Bette 35 percent of his gross annual income regardless of whether

she remarried.”66 Eleven days after his divorce, Mitchell married Martha Beall,

about whom more will be said later.67

Mitchell began his professional career at the firm of Caldwell and Raymond,

where he was exposed to the promise of government bonds as a way of financing

public works.68 Bonds could provide a way of exceeding debt ceilings without

subjecting the issue to a ballot initiative.69 Mitchell, sensing the power of tax-

exempt bonds to revolutionize public finance, quickly gained recognition as an

expert in the field.70 While traversing the country, Mitchell met politicians and

power brokers and made influential new friends.71 He was, as Business Week

observed, “on a first-name basis with as many elected officials as any full-time

politician in America.”72

In December 1966, Mitchell’s career took a fateful leap. His law firm, at his

insistence, merged with Richard Nixon’s.73 Thus began a lifelong relationship of

fidelity and travail. “‘John Mitchell, personally, wanted to be close to Richard

Nixon,’” one of his new partners recalled.74 “‘That was a major motivator in his

59. Id. at 8.


61. Id.

62. Id.

63. Id. at 8, 21 (detailing how the couple met and later describing the divorce and separation).

64. Id. at 20.

65. Id. at 21.


67. Id.

68. Id. at 9.

69. Id.

70. Id. at 13.

71. Id.


73. Id. at 30.

74. Id.


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bringing his firm into this firm.’”75 In this, he was successful. Nixon came to

admire Mitchell and to rely on him.76 Mitchell was a self-made man, who

navigated comfortably among the elite with “a bemused blue-collar contempt for

their pretensions.”77 He displayed an aura of calm and self-assurance that eluded

Nixon.78 And Mitchell was tough. Their relationship was cemented when Nixon

asked Mitchell to become his campaign manager for his run for the presidency in

1968.79 As one insider, William Safire, stated (or perhaps overstated): “‘John

Mitchell was the rock upon which Nixon built his church.’”80

Mitchell was, by all accounts, a splendid campaign manager. Nixon gave him

near complete autonomy and Mitchell took charge confidently and effectively.

His achievement was summed up in Business Week: “‘[I]t was Mitchell who

provided the administrative hand that made the Nixon machine a textbook

operation. Even under the pressures of the tightening campaign, Mitchell is not

recorded to have ever lost his temper, blamed anyone else for a mistake or even

stalled a decision.’”81 The Times of London similarly observed, “‘It is hard to

imagine that a political campaign was ever run with such crisp, mechanical

efficiency as Nixon’s drive on the presidency in 1968.’”82 Mitchell’s diligence in

managing this campaign contrasts sharply with his effort the second time around

in 1972. Then, distracted by the Watergate investigations and his wife, Martha’s,

breakdown, Mitchell lost focus, delegating some decisions and delaying others

that were his to make.83

IV. LAW AND ORDER

In his 1968 run for the presidency, Nixon made law and order an

overarching issue.84 This was a prudent response to elevated public concerns. In

the 1960 presidential campaign, crime was hardly mentioned.85 “A review of the

subject index of the 1960 presidential campaign speeches of John F. Kennedy

and Richard M. Nixon [does] not turn up such words as ‘crime,’ ‘police,’ [or]

‘law enforcement.’ Nor was crime discussed in . . . the party platforms of that

year.”86 “The 1964 presidential campaign signaled the entry of crime as a

75. Id.

76. See id. at 33.


78. Id. at 33-34.

79. Id. at 35.

80. Id. at 33.

81. Id. at 63.

82. Id. at 51.

83. ROSEN, supra note 1, at 321-24.

84. Id. at 48.

85. Caplan, supra note 2, at 585.

86. Id.


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national issue.”87 Senator Barry Goldwater, the Republican candidate, promised

that “‘as President, I’m going to do all I can to see that women can go out in the

streets of this country without being scared stiff.’”88 Nixon followed suit four

years later to cheering crowds.89 Rising crime rates and civil disorder in urban

areas nationwide following the murder of Dr. King created anxiety and prompted

calls for aggressive law enforcement.90 Nixon shrewdly targeted Lyndon

Johnson’s Attorney General, Ramsey Clark, who was preoccupied with civil

liberties and treated crime control advocates as thinly disguised racists.91 Nixon,

to standing ovations, promised: “‘We are going to have a new attorney general of

the United States of America!’”92

Nixon turned to Mitchell to be his tough-on-crime Attorney General.93

Mitchell was a surprising choice, reflecting Nixon’s great confidence. A

municipal bonds practitioner, Mitchell knew little about law enforcement and had

made it abundantly clear that he wished to return to practice in New York.94

There, the eccentric outbursts of his often intoxicated, volatile wife, Martha,

would be less conspicuous.95 Mitchell resisted Nixon’s entreaties. He was, as the

�ew York Times observed in its obituary, “‘not personally ambitious.’”96

Moreover, the role that Nixon envisioned for Mitchell was unattractive. In

person, a genial, warm man with a twinkle in his eye, Mitchell was instructed to

adopt a steely, somewhat menacing public persona. Previously unpublished notes

of Nixon’s Chief of Staff, H.R. Haldeman, outline the script Nixon had written

for his Attorney General: “play tough SOB role—as crime fighter . . . time to go

on real crusade—not just do good . . . put all PR effort we can into this area . . .

don’t make John likable . . . make him a tough crime-fighter.”97

Nixon was prescient. Casting personal inclinations aside, Mitchell promptly

stepped into character. He exhibited the same sharp focus and confidence as

Attorney General that he had displayed as campaign manager. At the time

Mitchell assumed office, student demonstrations were at their peak.98 Educators

responded uncertainly to student protests; their mild, even conciliatory responses

to demonstrators who seized their offices invited public unease and scorn.99 As

with the Administration’s war on crime, Nixon insisted that the Department of

87. Id.

88. RICHARD H. ROVERE, THE GOLDWATER CAPER 84 (1965).

89. See ROSEN, supra note 1, at 48.

90. See id. at 44.

91. See, e.g., id. at 48.

92. Id. at 49.

93. Id. at 70-71.

94. Id. at 65-66.


96. Id. at 487.

97. Id. at 71.

98. Id. at 77.

99. Id. at 77-79.


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Justice appear to be doing something about campus disorder.100 Nixon’s focus on

appearances is clear from Haldeman’s notes: “‘Doesn’t matter if we can do

anything . . . must say something strong, though . . . show no sympathy.’ On cue,

[Mitchell] announced a plan to prosecute ‘hard-line militants’ who crossed state

lines to foment riots on college campuses.”101 This was largely political rhetoric,

because maintaining law and order on campuses was not a federal responsibility.

Moreover, the Administration was not as tough as it sounded; it was political and

pragmatic. Mitchell was keenly aware of the dichotomy between words and

deeds, and in an oft-quoted statement made to a group of African-Americans, he

said so publicly: “‘You will be better advised to watch what we do instead of

what we say.’”102 This was a noteworthy admission, not so much for its duplicity,

as was charged by political opponents, but rather for its demonstration of

strategy. The Administration did not want to undermine its “Southern

[S]trategy”103 to build a Republican base by boasting of its genuine successes in

the South and elsewhere in achieving racial integration, but it continued to pursue

integration aggressively.104 Nixon had a low opinion of African-Americans105 and

distrusted Jews, but he supported school desegregation and the State of Israel;

Mitchell followed suit.106 Nixon’s marching orders were to “‘just do what is

right,’”107 and Mitchell followed orders.108 Given the Republican Party’s

100. Id. at 78.


102. Id. at 489.

103. Id. at 44-47.

104. Id. at 129-30.

105. Mitchell shared Nixon’s low opinion of African-Americans. Nixon told his Chief of Staff, H.R.

Haldeman, that welfare reformers did not understand that “the whole problem is really the blacks. . . . There has

never in history been an adequate black nation, and they are the only race of which this is true.” Id. During an

off-the-record meeting, CBS commentator Mike Wallace asked Mitchell if Nixon was going to speak to a group

of black publishers that Hubert Humphrey, Nixon’s opponent for the presidency in 1968, had addressed.

Mitchell’s response stunned him: “I don’t want Dick to go over there. You can buy those monkeys, anyway.”

Id. at 126. Mitchell “still use[d] the word ‘colored’ in his conversation,” id. at 127, and occasionally made anti-

Semitic remarks, though not with the frequency and vitriol of his President and presidential aides, Ehrlichman

and Haldeman. A �ewsweek reporter recalls Mitchell referring to a �ew York Times reporter as “the Heb

reporter” and “referring privately to Henry Kissinger as ‘that kike.’” Id. Nonetheless, on one occasion, Mitchell

accompanied a Jewish supporter of the President to Philadelphia to observe the arrival of a group of Russian

Jews. Mitchell had cleared the way for their emigration from the colossal hardships they endured in the Soviet

Union. As they disembarked, a witness observed Mitchell “crying openly, not bothering to wipe the tears from

his face.” Id. at 128. “Israel’s ambassador to the United States, Yitzhak Rabin—later the state’s prime

minister—noted the ‘growing . . . sympathy’ for Israel within the Nixon administration, ‘especially on the part

of Attorney General John Mitchell.’” Id. at 127-28.

106. See ROSEN, supra note 1, at 128-31.

107. Id. at 130.

108. The statistics that Rosen relied upon to demonstrate Mitchell’s achievement in desegregating

southern schools through judicial action, see id. at 143 (reporting 6 percent of African-American children in

desegregated classrooms before 1969; 20 percent in the fall of 1969, nine months into Nixon’s Administration;

and between 60 and 100 percent by 1970), seem on the high end. The numbers recorded by the U.S.

Commission on Civil Rights for the period in question, 1968 to 1972, are substantially lower. See U.S. COMM’N

ON CIVIL RIGHTS, TWENTY YEARS AFTER BROW�: EQUALITY OF EDUCATIONAL OPPORTUNITY 61 (Mar. 1975)


322

“Southern [S]trategy,” neither Nixon nor Mitchell sought recognition for their

achievement.109 Years later, one civil rights historian concluded that, “‘contrary

to conventional wisdom, contemporary federal affirmative action policy owes far

more to the likes of John Mitchell, George Schultz and Richard Nixon than to

Lyndon Johnson, a fact that stands in sharp contrast to the typical caricatures.’”110

Mitchell also spoke about the need for standards and goals to upgrade the

administration of criminal justice. He described its administration as “an

astonishing tale of neglect.”111 Mitchell pointed out that “[m]ost states have little

or no basic training for police” and that, “[i]n some states, lower court judges and

prosecutors are not attorneys.”112 He reserved his harshest criticism for the prison

system.113 “Most prisons and jails,” he asserted, “are overcrowded and

antiquated”; conditions in some places were “‘not only deplorable, but in many

cases inhuman.’”114

Sometimes Administration rhetoric was so spirited that it alienated those who

might well have been allies. Vice President Spiro Agnew’s speeches were

perhaps the most excessive and supercilious.115 Agnew referred to anti-war

activists as “‘an effete corps of impudent snobs,’”116 and Mitchell, who was fond

of Agnew, unrestrainedly followed his lead, labeling some leaders of the New

Mobilization Committee to End the War in Vietnam “‘more than snobs[,] . . .

active militants’ eager to ‘destroy . . . the institutions of government.’”117

Mitchell echoed FBI Director J. Edgar Hoover, who exaggerated the role of

professional agitators and ignored widespread support for civil rights and

criticism against the war in Vietnam: “‘Communists are in the forefront of civil

rights, antiwar and student demonstrations, many of which ultimately become

disorderly and erupt into violence.’”118 In fact, most demonstrations were led by

responsible, prominent individuals, peaceful in intent and execution. The New

Mobilization demonstration, for instance, was led by peace leaders such as

(reporting 18.4 percent school desegregation in 1968 and 46.3 percent (the highest percentage on the chart) in

1972). Nonetheless, there is general agreement that substantial progress was made and that Mitchell’s efforts

were praiseworthy. See ROSEN, supra note 1, at 144.


110. Id. at 144.

111. Ken W. Clawson, Mitchell Calls Criminal Justice an “Astonishing Tale of �eglect,” WASH. POST,

Feb. 20, 1971, at A1.

112. Id.

113. Id.

114. Id. at A5.

115. Prior to his selection as the vice presidential nominee, Agnew had been a corrupt Maryland

governor. He continued to solicit bribes as vice president and eventually wound up as still another Nixon

appointee at the dock. Agnew was allowed to plea nolo contendere in exchange for resigning his office. See,

e.g., United States Senate, Spiro T. Agnew, 39th Vice President (1969-1973), http://www.senate.gov/

artandhistory/history/common/generic/VP_Spiro_Agnew.htm (last visited Nov. 6, 2009) (on file with the

McGeorge Law Review).


117. Id.

118. Id. at 79.


323

Senator George McGovern (the Democratic Party’s presidential nominee in

1972), Mrs. Martin Luther King, Dr. Benjamin Spock, and Yale Chaplain

William Sloane Coffin.119 They did not threaten the populace; they represented it.

There were some exceptions.120 The four-day May Day demonstrations

sought to shut down the District by blocking bridges to the city and disrupting

traffic.121 The fear of looting, however, was never realized. The only incident that

even approached violence involved a demonstrator shoving a stick through the

spokes of a moving police scooter, resulting in a broken leg for the falling

officer. Over 12,000 arrests were made, many of which were preemptive and

therefore of questionable legality,122 but most demonstrators were not detained

for longer than their first court appearance the next day.123

V. DISCORD

Although Mitchell faithfully carried out his President’s directive to be the

Administration’s no-nonsense, law and order champion, Nixon grew dissatisfied

with his performance.124 Mitchell was not as cooperative and supportive as Nixon

had hoped.125 He opposed some of Nixon’s pet projects and effectively derailed

others.126 If Nixon understood that saying no to the President is part of the

Attorney General’s job description, he nonetheless was resentful. It is probably

true that all presidents at times resent sound legal advice. Both as heads of state

and political leaders, presidents want to make things happen and, at times, see

legal compliance as an obstacle on the course towards needed reform.127 But

Nixon was different. He brought with him to the Office of the Presidency a

longstanding disdain for the law and a willingness to circumvent it, which he

expected Mitchell to share.128

119. Id. at 88-89, 92-93.

120. Rosen’s discussion of the New Mobilization demonstration, November 13-16, 1969, brought one

unrelated, long forgotten event to mind. At day’s end, John Dean summoned Chief of Police Jerry Wilson and

me into his office at the Department of Justice to discuss the estimate of crowd size we should release to the

media. Dean argued that only about 250,000 protestors participated; our estimate was much higher, roughly

325,000. This was no small matter since, in negotiating with the demonstrators, we promised an apolitical, good

faith estimate, though we understood that the Nixon Administration wanted a low estimate. Rosen, in passing,

clears the air by noting this entry in the diary of H.R. Haldeman, President Nixon’s Chief of Staff: “‘Official

estimate 250,000 . . . . By our photo count, it was 325,000. Anyway, it was really huge.’” Id. at 92.


122. Id. at 112.

123. Id.

124. Id. at 162-63.

125. Id.

126. See id. at 163, 180.

127. The tension between law and politics characterizes what little scholarship there is on the Office of

the Attorney General. For a searching analysis, which focuses on the electronic surveillance of Martin Luther

King and other questionable behavior during Robert Kennedy’s term as Attorney General, see VICTOR S.

NAVASKY, KENNEDY JUSTICE (1971).



324

Mitchell deserves more credit for holding his ground than he has received.129

The most tumultuous example is the decision to charge International Telephone

and Telegraph (ITT) with antitrust violations.130 The President’s roughneck

Domestic Advisor, John Ehrlichman, had given assurances to ITT on behalf of

the President that the case would not go to trial.131 Mitchell overrode these

assurances, and, when the trial court decided in favor of ITT, Mitchell, ignoring

Ehrlichman’s barbed admonition, allowed the adverse decision to be appealed to

the United States Supreme Court.132 Nixon, inflamed by this insubordination,

ordered John Ehrlichman to instruct Mitchell’s deputy, Richard Kleindienst, to

abandon the appeal to the Supreme Court.”133 Nixon, still hot, called Kleindienst

himself and ordered him to fire Richard McLaren, the head of the Department’s

antitrust division.134 In a recorded conversation between Nixon and Kleindienst,

Nixon ordered “McLaren’s ass . . . to be out within one hour . . . . [L]eave the

Goddamned thing alone. . . . Don’t file the brief. . . . [M]y order is to drop the

Goddamned thing, you son-of-a-bitch! Don’t you understand the English

language? Is that clear?”135 Kleindienst promptly informed Mitchell that he

would resign rather than follow the President’s order, and Mitchell met with

Nixon the next day.136 Mitchell argued that it would be a “‘bad political

mistake’” to terminate the legal proceedings and Nixon reluctantly acceded.137

The following day, Mitchell told Kleindienst: “‘By the way, . . . your friend at the

White House says you can handle your fucking antitrust cases any way you

want.’”138

Although routinely coming around to Mitchell’s view in their face-to-face

meetings, Nixon was not appreciative. “Mitchell . . . didn’t want to be

political,”139 Nixon complained. He was particularly upset by the deliberate,

careful way Mitchell was building the case against Daniel Ellsberg for leaking

the Pentagon Papers to the �ew York Times.140 Nixon ordered him to “[t]ry

[Ellsberg] in the press. Everything, John, that there is on the investigation—get it

out, leak it out. We want to destroy him in the press. Press. Is that clear?”141

129. Erwin Griswold, the former Dean of the Harvard Law School, who continued to serve as Solicitor

General through Nixon’s first term, recalled that Mitchell “shielded [him] from several matters . . . [and] served

to protect [him] from a good deal of direct pressure” from Nixon appointees. Id. at xv.

130. See generally id. at 186-220 (providing background information on the ITT case).

131. Id. at 189.

132. See id. at 189-99.

133. Id. at 190.


135. Id.

136. Id. at 193.

137. Id. at 194.

138. Id. at 195. Another example is Mitchell’s proceeding with organized crime prosecutions after

Nixon, concerned over alienating the Italian vote, ordered “no mafia prosecutions prior to election.” Id. at 491.

139. Id. at 76.

140. See ROSEN, supra note 1, at 162-63.

141. Id.


325

On occasion, Mitchell’s prudential counsel so annoyed Nixon that he began

to yearn for the time when Mitchell would leave office. Nixon told Haldeman in

a confidential memorandum in 1971: “Actually, when Mitchell leaves as

[A]ttorney [G]eneral, we’re going to be better off in my view . . . . John is just

too damn good a lawyer, you know. He’s a good, strong lawyer. It just repels him

to do these horrible things, but they’ve got to be done.”142 The horrible things to

which Nixon was referring included the formation of the White House Special

Investigations Unit, a secret group better known as “the Plumbers.”143 Nixon,

having been rebuffed by Director Hoover, created the Plumbers to plug leaks to

the media.144 Under the direction of John Ehrlichman, the Plumbers committed a

host of illegal acts, including a break-in at the office of Daniel Ellsberg’s former

psychiatrist.145

Mitchell was more successful in his opposition to the infamous “Huston

Plan,” another, more ambitious set of proposals for covert domestic actions

advanced by a twenty-eight-year-old White House employee, Tom Huston, who

Rosen describes as “[i]mperious, abrasive, staunchly conservative, and mousy—

an unsmiling executive-branch version of Woody Allen.”146 Huston, agitated by

the FBI’s refusal to participate, conspired with disgruntled officials from the CIA

and FBI to develop the Plan.147 He accurately characterized his proposals as

“‘clearly illegal’” and “‘highly risky,’” but insisted that, if carefully

implemented, they would yield “‘the type of intelligence which cannot be

obtained in any other fashion.’”148 Nixon did not hesitate. He approved the Plan,

but before it could be acted upon, Mitchell intervened and persuaded the

President to change his position.149 Mitchell found the Plan “both illegal and

unwise.”150 Looking back, it is ironic that Mitchell, who opposed the White

House covert activities that addressed realistic concerns over national security

breaches, should find himself subsequently ensnared with the criminal schemes

of Gordon Liddy that promoted no public good and whose only purpose was to

subvert the presidential election of 1972.

142. Id. at 76.

143. Id. at 163.

144. Id.

145. Id.


147. Id. at 493.

148. Id.

149. Id. at 493-94.

150. Id. at 493 (“‘I quite agreed with them,’ Mitchell testified at the Watergate cover-up trial, adding

that the plan ‘was not something we in the Justice Department would certainly want to participate in. . . . It had,

I think, to put it mildly, some illegal activities involved. . . . I called Mr. Haldeman and the [P]resident and

objected to it.’”).


326

VI. BREAKING IN AND COVERING UP

Mitchell’s downfall began with a seemingly innocuous meeting with three

subordinates, John Dean, Jeb Magruder, and Gordon Liddy, at Mitchell’s office

on January 27, 1972.151 John Dean had been a Mitchell aide and was then serving

as counsel to the President. Dean valued Liddy’s reputation as an intelligence

operative and had recruited Liddy to work for the CRP.152 A former FBI agent

and prosecutor, Liddy maneuvered his way through the Treasury Department to a

White House position. Fit, cocky, and something of a dandy, he passed himself

off as an intelligence expert, although he had never worked for the CIA and had

only worked for the FBI for five years.153 He was an oddity if only because of his

fascination with the Third Reich.154 While at the White House, he arranged a

“screening of Triumph of the Will, the landmark Nazi propaganda film.”155 He

was prone to theatrics as well, such as firing a gun in a courtroom,156 and, on

more than one occasion, proving his fortitude by holding a match under his hand

until the skin was singed.157

Although Liddy held the title of General Counsel to the CRP, which Mitchell

headed, his actual assignment was to run a well-funded, “‘first-class intelligence

151. Id. at 262.


153. It is easy from a distance to dismiss Liddy as unbalanced or fanatical, but in person he could be

captivating. He was intelligent, engaging, and had a good sense of humor. His shortcoming was judgment; he

mistook the political process for a theatre of war and was obsessive in his need to prove his courage in battle.

See generally G. GORDON LIDDY, WILL: THE AUTOBIOGRAPHY OF G. GORDON LIDDY (1980). On more than

one occasion, Liddy offered to murder someone. He once offered the Nixon administration his services in

killing syndicated columnist Jack Anderson. Id. at 207-10. Similarly, he volunteered his services as an assassin

to Egil Krogh, a presidential aide: “‘Bud, if you want anyone killed, just let me know.’ He smiled and said, ‘I

will.’ I reacted to his smile by saying, ‘I’m serious.’ ‘I know you are,’ said Krogh, his smile gone. ‘I’ll let you

know.’” Id. at 195. Liddy earlier had told Krogh that if he were detected during the break-in at the home of Dr.

Fielding (Daniel Ellsberg’s psychiatrist), he would kill if necessary to avoid apprehension and to protect his

accomplices from arrest. Id. at 169. Liddy’s favored method for proving his courage to others was to burn his

palm. On one occasion, Liddy sought to reassure a prospect for undercover work that he could not be forced to

reveal her identity. “She didn’t believe me and I was casting about for some way to convince her when I noticed

she smoked. I told her to light her cigarette lighter and hold it out . . . and I locked my gaze upon her eyes and

placed my hand, palm down over the flame. Presently the flesh turned black and . . . she smelled the scent of

burning meat . . . .” Id. at 190. Unsurprisingly, the prospect quickly and decisively declined Liddy’s offer of

employment. Id. Liddy was untroubled; he had proved his valor. Liddy pulled this stunt so many times that his

palm was “burned out” and he had “to go back to where [he] started years before[, his] forearm,” to impress a

fellow inmate. Id. at 298. “The pain,” Liddy reported, “was not as severe now because all the nerves in the . . .

area had been destroyed.” Id. Liddy’s poor judgment was evidenced by his enlisting an employee of the

Committee for the Re-Election of the President as one of the burglars in the Watergate break-in, allowing the

investigators to immediately link the burglary to the Republican Party and its campaign manager, John Mitchell.

Liddy accepted responsibility for the botched burglary and earnestly told an astonished John Dean: “‘If

someone wants to shoot me . . . just tell me what corner to stand on and I’ll be there, O.K.?’” Id. at 257-58.


155. Id.

156. Id. at 259.

157. LIDDY, supra note 153, at 190.


327

operation.’”158 Liddy was supposed to report to Jeb Magruder, the Deputy

Director of the CRP.159 Mitchell had met Liddy several months earlier, in

November 1971, when he approved Liddy’s hiring.160 They did not discuss

covert intelligence gathering at the November 1971 meeting, but two months

later, in January, they reconvened again in the Office of the Attorney General for

a lengthy briefing by Liddy.161 Liddy, carrying an easel and a bundle of charts

(three feet tall and four feet wide), came well-prepared to advocate his

proposals.162

Liddy’s first proposal, “Operation Diamond,” targeted unruly anti-war

radicals to prevent them from interrupting the convention. The prevention

method Liddy had in mind was to “kidnap and drug antiwar leaders and remove

them to Mexico until the convention ended.”163 Liddy proposed the creation of

“special action groups,” a tasteless “reference to Nazi Einsatzgruppen units that

liquidated 1.5 million Jews,” to get the job done.164

Here, I think it prudent to pause, if only to take a deep breath and ponder

how, if you were in Mitchell’s shoes, you might respond to Liddy. Mitchell did

not respond as one might expect, by asking whether his three visitors were out of

their minds. He did not throw the lot of them out of his office. Nor did he treat

Liddy as a crackpot. Rather, he sought particulars. Mitchell asked who would do

the kidnapping. “‘[M]embers of organized crime,’” Liddy replied, describing

them as “‘professional killers who have accounted between them for twenty-two

dead so far . . . including two hanged from a beam in a garage.’”165 “‘And how

much will their services cost?’” Mitchell asked.166 “‘Like top professionals

everywhere, sir, they don’t come cheap,’” Liddy replied.167 Finally, Mitchell said,

“‘[L]et’s not contribute any more than we have to the coffers of organized

crime.’”168 During a break at Mitchell’s criminal trial, the presiding judge, John

Sirica, focused on this moment and could not resist commenting to those present:

“‘It’s too bad that Mr. Mitchell didn’t say, “Throw them out of here, get them out

fast,” and you wouldn’t even be in this courtroom today. It’s too bad it didn’t

happen that way.’”169

Another of Liddy’s proposals, “Crystal,” involved renting a luxury

houseboat, planting it with bugs and wiretaps, and retaining “sophisticated call


159. Id.

160. Id.

161. Id. at 262.

162. Id.

163. Id.


165. Id. at 262-63.

166. Id. at 263.

167. Id.

168. Id.

169. Id. at 432.


328

girls” to “seduce and debrief Democratic politicos.”170 Again, Mitchell remained

impassive, listening, but not commenting.171 Other proposals, equally

preposterous, included the “clandestine recruitment of unappealing hippies to

endorse opposition candidates” and retaining “Cuban mercenaries to sabotage the

air-conditioning system at the Democrats’ convention.”172 Mitchell did not

approve of Liddy’s plans.173 Commenting, “‘Gordon, that’s not quite what I had

in mind,’” he sent Liddy back to the drawing board.174 Magruder later testified

that Mitchell found Liddy’s grand plan unacceptable “‘both in its scope and its

budget.’”175 The “‘type of activity discussed’ . . . was ‘way out of line.’”176

A week later, Liddy, Dean, and Magruder met again in Mitchell’s office at

the Department of Justice to review Liddy’s revisions.177 It was their last

meeting. The new agenda was “‘less spectacular.’”178 Magruder testified that the

“‘call girl thing was out, the kidnapping was out.’”179 But what remained was still

felonious—burglaries, wiretaps, and theft.180 The four men also discussed who

should be spied upon, according to Magruder.181 Dean initially testified that there

“‘may have been something as to potential targets,’” then modified his position,

corroborating Magruder’s testimony.182 Those involved at the meeting were

indeed “‘talking about targets, possible targets of electronic surveillance.’”183

Mitchell denied that prospective targets were discussed and his recollection may

well have been accurate.184 But it is hard to credit fully this denial, given

Mitchell’s propensity for denial.

Even if such discussions never took place, it seems clear that, overall, the

issues raised by Liddy’s proposals at the two meetings were strategic, not legal or

ethical. The four men, three of whom were lawyers, understood that what was

being proposed was unlawful. Perhaps there was an air of adventure in the room

as they congenially contemplated how their schemes would play out. Nothing

was decided, however. All agree that Mitchell did not approve of Liddy’s revised

plan.185 Liddy’s recollection was that the meeting ended with Mitchell “saying he


171. Id.

172. Id. at 264.

173. Id.

174. Id.

175. Id.


177. Id. at 265.

178. Id.

179. Id.

180. Id.

181. Id.


183. Id. at 267.

184. Id. at 266.

185. Id. at 264.


329

would think about Liddy’s proposals and get back to him.”186 Had they known

that Nixon would sweep to re-election by one of the largest landslides in

American history, would they still have criminally conspired to steal the

presidential election? Mitchell later stated, “‘I didn’t spend a hell of a lot of time

with Liddy. . . . I left the matter to Dean.’”187 But what time Mitchell did spend

with Liddy was too much.

Rosen assiduously tracks the various meetings and communications among

Mitchell, Dean, Magruder, Liddy, and others implicated in the break-in and the

cover-up. He makes two findings, well-supported by parsing the enriched factual

setting he developed, both at variance with prevailing views: first, that John Dean

bears primary responsibility for authorizing the break-in at Democratic

Headquarters at the Watergate office complex;188 and, second, that both Dean and

Magruder massaged the facts and shifted blame to Mitchell to secure

prosecutorial leniency.189 As historians and most investigators have not credited

Mitchell’s denials, Rosen’s account may well compel a reexamination of their

analyses. Dean, it will be recalled, was the first to sense danger from the

likelihood of criminal prosecution, and he won the race to the prosecutors to

make a deal.190 Magruder was not far behind.191 Magruder’s initial testimony

only served to implicate Dean, and, as Dean had already confessed, this was of

marginal value to the Watergate prosecutors, who wanted to know whether

Mitchell was implicated.192 Over time, Magruder and Dean revised their

testimonies to say that he was involved. Rosen concludes that Mitchell was “a

casualty of a wicked alliance between coconspirators eager to tell lies and

prosecutors eager to believe them.”193 It could well have happened that way. This

was Nixon’s view. He did not believe that Mitchell gave the order. “‘Mitchell,’”

he said, “‘is a smart man. He’s too smart to ever get involved in a stupid, jackass

thing like Watergate!’”194 I agree. “Smart” is the right descriptor. “Scrupulous”

or “principled” would be inapt.

186. Id. at 267.

187. Id. at 261.


189. Id. at 266-67, 298-303 (recounting Magruder’s contested account of the events leading up to the

Watergate scandal).

190. Id. at 294.

191. Id.

192. Id. at 294-95.

193. Id. at 298.

194. ROSEN, supra note 1, at 471. Startled by news of the break-in, Nixon struggled, as historians have,

to fix culpability. But he became quite certain that Mitchell did not order or approve the Watergate burglary.

Nixon said: “John wasn’t mindin’ that store. He was practically out of his mind about Martha in the spring of

1972! He was letting Magruder and all these boys, these kids, these nuts run this thing! The point of the matter

is that if John had been watchin’ that store, Watergate would never have happened.” Id. at 470. Elsewhere,

Nixon told Robert Mardian, a former Mitchell aide, that he was “sure that the decision was one that Haldeman,

Ehrlichman and JNM were too smart to make.” Id. at 446.


330

Nixon, nonetheless, ultimately blamed Mitchell. “‘We all know who the hell

should have handled this,’” Nixon told Haldeman.195 “‘Goddamnit, it was

Mitchell, and he wasn’t handling it.’”196 More sympathetically, Nixon noted that

Mitchell’s attention was diverted away from the campaign and towards caring for

his wife, who was edging toward a breakdown.197 “‘He was unable to watch the

campaign and as a result, underlings did things without his knowledge.’”198

Nixon was unable to recognize that his own embrace of unlawful conduct,

evidenced, for example, by his approval of the formation of the Plumbers and of

the Huston Plan, created a climate in which aides would, to court favor with

Nixon or have an adventurous fling, concoct illegal schemes on their own. But he

did recognize that Mitchell was a casualty largely of his own making. Magruder,

Dean, and Liddy, among others, either reported to Mitchell or deferred to him.199

Magruder was his subordinate at the CRP200 and Dean had been his subordinate

at the Department of Justice201 before moving to the White House. Mitchell may

well have inadvertently led his aides to think that they had the discretion to act in

his stead. As Dean later said, “‘John Mitchell is not a terribly responsive

man . . . .’”202 He did not say yes and he did not say no. But he did present

himself as a man who was open to suggestions of wrongdoing. That is why

Liddy, Dean, and Magruder trudged to his office, proposals in hand, for what

Mitchell’s prosecutor was to call Liddy’s “‘one-man crime wave.’”203 Rosen

emphasizes that “no court of law ever determined who did give the order,”204 but

we all know who did not prevent what was preventable.205

That Mitchell was not the same man at the time of Watergate who had

conscientiously and diligently run Nixon’s 1968 campaign is evinced by his

oversight of expenditures at the CRP.206 Magruder submitted a payment request

for $83,000 for Gordon Liddy, which both Hugh Sloan, the CRP’s Treasurer, and

his boss, Finance Committee Chairman Maurice Stans, declined to process

without first securing Mitchell’s approval.207 When Mitchell, after admitting that

he did not know what the payment was for, proceeded to approve, Stans was

195. Id. at 347.

196. Id.

197. Id.

198. Id.

199. E.g., id. at 264.


201. Id. at 261-62.

202. Id. at 221.

203. Id. at 435 (recounting portions of the cross examination of Mitchell regarding some of Liddy’s

proposed action plans).

204. Id. at xix.

205. Rosen recognizes Mitchell’s neglect of duty. “Mitchell never ordered the Watergate operation,

never even heard a proposal targeting that site, but he’d sat at the pinnacle of American law enforcement and

twice listened to Gordon Liddy propose similar crimes and never ordered Liddy arrested or fired.” Id. at 363.


207. Id. at 279.


331

taken aback: “‘Do you mean, John, that if Magruder tells Sloan to pay these

amounts or any amounts to Gordon Liddy that he should do so?’ ‘That is right,’

Mitchell answered.”208 “‘Magruder is in charge of the campaign and he directs

the spending.’”209 But Mitchell, not Magruder, was campaign manager. Perhaps,

ostrich-like, he did not want to know what Liddy and his crew were up to;

perhaps, as Nixon suggested, Mitchell was simply overwhelmed by his wife

Martha’s mental and physical collapse, about which more will be said later.210

Unlike the other Watergate defendants, Mitchell expressed no remorse; he

did not consider himself culpable.211 The closest he came to acknowledging guilt

occurred privately to Richard Nixon, shortly after his indictment.212 Mitchell said

he was “‘terribly chagrined that the activities of anybody attached to his

committee should have been handled in such a manner’ and expressed regret he

had ‘not policed all the people more effectively in his own organization.’”213

Senator Weicker managed to wrest a concession from him during the hearing of

the Senate Select Committee on Presidential Campaign Activities.214 Weicker

asked whether “Mitchell, as an officer of the court, felt he had done ‘the right

thing’ withholding from the authorities his ex post facto knowledge of the

Ellsberg break-in. ‘I think, in retrospect [coming forward] probably would have

been the right thing to do,’ Mitchell conceded.”215 Finally, Mitchell’s petition for

a reduction in his sentence offered a carefully framed admission of sorts.

“‘Counsel is authorized by Mr. Mitchell to advise the court that he is truly sorry

for and regrets those actions of his that resulted in his conviction.’”216

Elsewhere, Mitchell denied complicity. He told a former aide that “‘[t]he jail

time he spent never bothered him a bit . . . except for the fact that . . . he knew he

wasn’t guilty.’”217 He often stated, vaguely and, characteristically, without

elaboration, “‘My mistake was in men, not in law.’”218 The statement is hard to

fathom. What mistake about men did Mitchell make? He knew he was keeping

bad company. He knew that the Plumbers were acting outside the law and that

Tom Huston proposed additional criminal undertakings. He also knew that his

aides and those within his ambit of influence, particularly Dean, Magruder, and

208. Id. at 279-80.

209. Id. at 279.

210. See infra notes 223-46 and accompanying text.

211. In contrast, Ehrlichman stated that he had “‘abdicated my moral judgments and turned them over to

someone else,’” and Haldeman apologized “‘for what I’ve done, for what I’ve been responsible for, for what’s

been the result of the damage to many, many people, and, I think, to the whole governmental system. . . . I

recognize my responsibility to atone.’” ROSEN, supra note 1, at 460.

212. Id. at 312-13.

213. Id. at 313.

214. Id. at 392-93.

215. Id. at 393.

216. Id. at 459.


218. Id. at 444.


332

Liddy, were up to no good. Indeed, they discussed specifics with him. Mitchell

did not rely on them to stay on the right side of the law, but rather to avoid

detection. As to Mitchell’s claim that his mistake was “not in law,” surely

committing or suborning perjury qualifies as a mistake in law, and Mitchell

perjured himself on more than a few occasions.219 He was convicted of perjury

for coaching Jeb Magruder to testify falsely before the Watergate Grand Jury.220

But Mitchell, lifelong, held his ground: “‘There’s nothing I did that I wouldn’t do

again with a clear conscience.’”221

Life would surely have gone better for Mitchell if he had, like Ehrlichman,

Haldeman, and other defendants, said he was sorry. He would not have avoided

disbarment, but he would have taken a big step towards rehabilitation and public

forgiveness. But Mitchell, unlike his co-defendants, Dean, Magruder, Haldeman,

Ehrlichman, and Liddy, was not about to write a memoir or go on a campus

speaking tour or sell himself in any public forum. Perhaps the most important of

the roads not taken was his decision not to shade his testimony to implicate the

President and thereby gain leniency. However one views this resoluteness, it is

accurate to say, as did Nixon and others, including the Washington Post in the

first edition of its obituary, that Mitchell “‘was a stand-up guy.’”222

VII. AND THEN THERE WAS MARTHA

Mitchell’s sustained devotion to his second wife, Martha, was as remarkable

as it was inexplicable. He was continuously embarrassed by the unpredictable

behavior of his unbalanced, alcoholic wife, whose late evening and early

morning crank calls to reporters made her a favorite of the media and a spectacle

to everyone else.223 Some journalists, thrilled by her attacks on Nixon and her

criticism of the war in Vietnam, “cast her as a lonely and brave heroine,”

ignoring palpable evidence of mental illness.224 “�ewsweek crowned her ‘the

most liberated woman in the world,’ notwithstanding Martha’s own declaration

. . . that she wondered how feminists ‘have any respect for themselves.’”225 And

the �ew York Post saw her “‘as the essence of exquisite Southern charm,’”226

despite her habit of ruining social events by shouting down guests, throwing her

shoes at her husband, and passing out.227 She once told a Senator: “‘It’s liberals

like you who are selling this country down the river to the communists.’”228 She

219. Id. at 495.

220. Id.

221. Id. at 454.

222. Id. at 488.


224. Id.

225. Id.

226. Id.

227. Id. at 404.

228. Id. at 399.


333

publicly taunted New York City Mayor John Lindsay, calling him “Lindsley.”229

“‘When I don’t like somebody,’” she explained, “‘I usually have a nickname for

them.’”230

Other outbursts, where she addressed sensitive public issues, were more

worrisome. Martha took aim at a landmark decision of the United States Supreme

Court, Swann v. Charlotte-Mecklenburg,231 which upheld the constitutionality of

court-ordered busing, by telling reporters that the Supreme Court should be

“‘extinguish[ed]’” as “‘it’s absolutely asinine for those nine old men to rule

against the people.’”232 Her criticism of Nixon, borne of jealousy, remained

immoderate and constant, but her views on the war varied. She made headlines

by saying “‘[t]he War Stinks,’”233 but celebrated the incursion into Cambodia as

“‘100 percent wonderful.’”234 Later, we find her “urging friends to send their

draft-age sons to Canada.”235

Martha’s rude outbursts at social events stood in stark contrast to Mitchell’s

bearing, which was quiet, reserved, and solicitous. Wherever she went, Martha

demanded attention. John Ehrlichman complained that at dinner parties, “‘You

couldn’t conduct a separate conversation down at the other end of the table.

She’d say, ‘You people down there, be quiet. I want to say something.’’”236 Her

instability was augmented by her alcoholic binges. Martha drank heavily, passed

out frequently, and was prone to physical violence.237

Nonetheless, Mitchell was devoted to her and worried about her incessantly.

Nixon records a “moving moment” in his memoir.238 When Nixon first learned

that he had won the election and invited Mitchell to join him to get the

presidency “‘planned out,’” Mitchell declined.239 “A tear streamed down his

face . . . ‘I think I’d better go up to be with Martha.’”240 Martha, more than Nixon

or his work, seemed to be the centerpiece of his life.241 Mitchell recognized the

severity of her mental and emotional health problems. He told Haldeman that

Martha might be “unable to cope with the strain of Watergate and expressed


230. Id.

231. 402 U.S. 1 (1971).


233. Id. at 401.

234. Id. at 400.

235. Id.

236. Id. at 403.

237. Id. at 404, 414.


239. Id.

240. Id.

241. Mitchell’s devotion to Martha was well known. A law partner who shared a hotel room with

Mitchell overheard him speaking to Martha on the phone before retiring. He described it as the “sweetest” and

“very romantic” and said that “it went on for a long time.” Id. at 24. Unimaginably, Mitchell was talking “baby

talk.” Id. At the time, the Mitchells had been married over a decade.


334

fear” that she might be suicidal.242 But his options were few. Although Mitchell

continued to publicly maintain a bemused indifference to the behavior of his wife

and privately looked after her as much as one could, the stress he endured as a

target of a criminal investigation forced a change in their relationship. One day

Mitchell abandoned his efforts to manage his wife’s madness and walked out.243

What followed was a prolonged, nasty, costly, and public divorce,244 followed by

Martha’s sudden collapse after contracting a rare and extremely painful form of

cancer.245 Her demise was sadder than most. Martha died penniless and alone at

the age of fifty-seven. Mitchell directed the funeral arrangements.246

VIII. NIXON AND MITCHELL

Mitchell and Nixon were drawn to one another from their first meetings, at

which they discussed merging their law firms. Nixon admired Mitchell’s verve

and confidence and came to perceive him as a valuable ally in making a second

run for the presidency.247 Mitchell’s effectiveness as campaign manager248

cemented this admiration, as did Mitchell’s development and execution of a

crime control strategy for the Administration.249 Their relationship easily

survived a few bad calls by Mitchell, such as his two nominees for appointment

to the Supreme Court, both of whom failed to obtain Senate confirmation.250

More annoying to Nixon were Mitchell’s objections to his covert intelligence

initiatives.251 Although Nixon more than once wished for an Attorney General

who was more accommodating, he continued to value and admire Mitchell and

remained close to him.252

Martha Mitchell was a thorn in their relationship. Mitchell seemed unable to

stop the continuing stream of front-page stories featuring his batty wife.253 Her

242. Id. at 322.

243. Id. at 408.

244. Rosen writes: “In the annals of divorce, the dissolution of the Mitchell marriage, and the competing

child-custody and property claims it engendered, surely rank among the longest, nastiest, costliest, and most

painfully public of the media age.” ROSEN, supra note 1, at 407-08. Martha accused Mitchell of “cruel and

inhuman treatment” and asserted that Mitchell played a “‘leadership’ role in the ‘Watergate break-in and cover-

up.’” Id. at 407. She also set fire to Mitchell’s personal mementos and documents and discarded the rest of his

belongings in the entryway. Mitchell testified that Martha’s harassment and instability impaired his preparation

for his criminal trials and that her alcoholic binges rendered her “‘unfit’ to care for [their daughter], in whom

she ‘instilled fear . . . and upon occasion . . . physical abuse.’” Id.

245. Id. at 416.

246. Id.

247. Id. at 200.

248. Id. at 44-56 (recounting Mitchell’s days as Nixon’s campaign manager).

249. Id. at 72-73.


251. Id. at 163.

252. Id.

253. Id. at 398-400.


335

early-morning, alcohol-drenched calls to reporters included outbursts such as “‘I

love the Democrats’”254 and “‘I can’t get over saying colored.’”255 Following

Senator Fulbright’s vote against confirmation of Judge Carswell, Martha called

Fulbright’s hometown newspaper and told it, “‘I want you to crucify Fulbright

and that’s it! . . . [He] makes me so damn mad, I can’t stand it.’”256 Nonetheless,

when Haldeman suggested that Nixon ease Mitchell out of his position as

campaign manager for his re-election, Nixon rejected it out of hand: “‘I can’t do

that. I won’t do that to him. I’d rather, shit, lose the election. I really would.’”257

It was the break-in at the Watergate that drove the two men apart.

Nixon recognized Mitchell’s role in the break-in, justifiably, as several of the

most prominent players were under Mitchell’s wing. John Dean had served as his

Associate Attorney General and was working closely with the campaign.258 Both

Magruder, as Deputy Director of the CRP, and Liddy, as its General Counsel,

reported to Mitchell.259 Nixon did not think Mitchell was directly implicated in

the Watergate break-in. “‘I think John said, “Well, we’re trying to get the

information . . . don’t tell me anything about it.” You know, that’s the way you

do it, thinking probably they were going to do it the way you always do, planting

a person on the other side, which everybody does.’”260 Nixon did blame Mitchell

for carelessness in overseeing his staff, but again showed concern for Mitchell’s

circumstances. “‘I would dump him,’” Nixon told Ehrlichman, “‘it would kill

him financially. John Mitchell has a serious problem with his wife. He was

unable to watch the campaign and as a result, underlings did things without his

knowledge.’”261 Mitchell, for his part, understood that continuing to serve as

campaign manager might be a burden for Nixon and offered to resign. “‘If this

thing escalates,’” he told Haldeman, “‘I think it would be very good if I’m out of

the place and you could say, ‘Well, there’s a whole new team over there.’”262

Just as Nixon at times ruminated on how pleasant it might be if Mitchell

resigned as Attorney General, Mitchell at times found Nixon hard to take. He

“derisively referred to Nixon as ‘Milhous’—the middle name Nixon loathed,”

and insisted that Nixon lacked intelligence and resolve.263 “Nixon couldn’t piss

254. Id. at 124.

255. Id. at 399 (internal quotation marks omitted).


257. Id. at 321.

258. See id. at 260-61.

259. Id. at 260-62.

260. Id. at 321-22 (quoting Nixon).

261. Id. at 347. Nixon himself was unraveling during this period. Far from acting as a masterful,

manipulative politician, Nixon, in his meetings with his aides, rambled in an unfocused manner confused by the

welter of details and persons implicated in the wrongdoing. Aides noted that it was hard to follow his train of

thought, that he was “‘genuinely confused by all of the conflicting accounts,’” and that he betrayed “‘a seeming

incoherence of speaking style.’” Id. at 349.


263. Id. at 35-36.


336

straight in the shower . . . . He’s about as complicated as my grandson.”264 But

these outbursts, with one exception, were transient, inconsequential, and, of

course, out of public view. The exception was driven by Mitchell’s desire to

avoid prosecution. His attorneys sought permission to take Nixon’s deposition.

They argued, somewhat opaquely, that “‘Mr. Nixon may have participated in a

conspiracy which carefully excluded Mr. Mitchell’s membership, and which was

designed to have an extremely adverse effect on Mr. Mitchell’s well-being.’”265

Apart from this, Mitchell’s public remarks invariably manifested great

admiration and respect for Nixon. Unlike many of his fellow Watergate

defendants, Mitchell never attempted to trade information, real or fabricated,

against Nixon in exchange for leniency or to avoid imprisonment. Instead, he

gave the prosecutors an offer they could refuse, a promise to plead guilty if they

ceased their pursuit of the President. Nor did he yield to the temptation of

publishing a memoir or retrospective about his years in power, as did Haldeman,

Ehrlichman, Dean, Magruder, Liddy, and others.266 Nor did Mitchell serve up dirt

about Richard Nixon, of which there was an abundance, in order to delight

university students or television audiences. His was a stoical display of loyalty.

Nixon frequently telephoned Mitchell both during Mitchell’s criminal trials

and his imprisonment from June 1977 to January 1979.267 On the Labor Day

weekend following his release, Nixon gave a sixty-sixth birthday party in San

Clemente for his former law partner, campaign manager, Attorney General,

advisor, and friend.268 As Mitchell put it, “‘The [P]resident’s going to have a

cocktail party for me in San Clemente.’”269 About 250 people attended.270 Nixon

toasted Mitchell, saying, “‘John Mitchell has friends . . . [a]nd he stands by

them.’”271 Nixon continued to stay close to Mitchell following his release. Mary

Gore Dean, with whom Mitchell lived after the completion of his sentence,

reported that Nixon would call on Mitchell’s birthday or if something happened

that he thought would interest Mitchell.272 Henry Kissinger may have been right

in stating that Nixon had no close friends, but Nixon was capable of compassion,

solicitude, guilt, and affection, and he had a deep, abiding affection for John

Mitchell. In his words, “‘John Mitchell I love.’”273

264. Id.

265. Id. at 426.

266. See, e.g., JOHN W. DEAN III, THE WHITE HOUSE YEARS: BLIND AMBITION (1976); JOHN

EHRLICHMAN, WITNESS TO POWER: THE NIXON YEARS (1982); H.R. HALDEMAN & JOSEPH DIMONA, THE

ENDS OF POWER (1978); LIDDY, supra note 153; JEB STUART MAGRUDER, AN AMERICAN LIFE: ONE MAN’S

ROAD TO WATERGATE (1974).

267. ROSEN, supra note 1, at 448, 458.

268. Id. at 466.

269. Id.

270. Id.

271. Id. at 467.

272. See id. at 448.

273. National Review Online, supra note 17. This quote also appears on the frontispiece to Rosen’s


337

Throughout all the exigencies and perils in which self interest placed them at

odds with one another, their relationship persisted until Mitchell’s death in 1988.

At life’s end, we find Mitchell walking alone in the late afternoon on

Georgetown streets, “‘a gray man plodding alone in his gray way,’” then falling

dead of a heart attack at age seventy-five.274 At Mitchell’s funeral, there he was,

the man Mitchell referred to as “the president,” prominently escorting Mary Gore

Dean, arm-in-arm, to her seat in the front pew.

IX. LIFE AFTER PRISON

Mitchell served his sentence at the federal prison at Maxwell Air Force

Base. The choice of Maxwell was dictated by concerns over Mitchell’s safety

and imposed an added hardship, as Alabama was a long way from his friends and

children in New York and along the East Coast.275 Nonetheless, Mitchell

maintained his sense of humor. When the press asked how he felt, Mitchell

quipped, “‘It’s nice to be back in Alabama.’”276 At Maxwell, he exhibited his

usual bravado, made friends among the inmates, and adjusted to prison life. But

he was a wounded man. “Like Viola in Twelfth �ight, he ‘sat like Patience on a

monument, / Smiling at Grief,’”277 during his nineteen months in custody.

Mitchell did not entirely fade into obscurity following his release, as he

might have liked. Alone among the Watergate defendants, he returned to

Washington. There he reunited with the widow of a long-time friend, Mary Gore

Dean, who had reached out to Mitchell during his criminal trial. “‘I just told him

that . . . my husband would certainly want me to be his friend if he needed a

friend right now.’”278 For Mitchell, she was an angel. He moved into Mary

Dean’s large and comfortable townhouse in Georgetown and made his home

there until he died.279 Mrs. Dean’s three children came to view Mitchell as a

second father, the youngest calling him “Daddy.”280 “‘It was absolutely

wonderful how he brought so much happiness and light into our family,’” said

Mary Dean.281

But Mitchell struggled to earn a living. Friends had raised several hundred

thousand dollars for him to help cover his legal bills, but most doors were closed

to him when it came to securing employment.282 He eventually came into contact

book, following the table of contents. See ROSEN, supra note 1.

274. ROSEN, supra note 1, at 475, 487.

275. Id. at 451.

276. Id. at 455.

277. JEFFREY MEYERS, SAMUEL JOHNSON: THE STRUGGLE 182 (2008).


279. Id. at 442-43.

280. Id. at 443.

281. Id.

282. See id. at 472.


338

with individuals who sought his intervention with former friends still in high

places in government. Mitchell did make a few phone calls on their behalves, but,

as it turned out, his most influential contact was Mrs. Dean’s oldest daughter,

Deborah. Deborah was the executive assistant to Samuel Pierce, the Secretary of

Housing and Urban Development (HUD), whose two terms in office were

marked by rampant corruption.283 Her reputation for being the person in the

Secretary’s office who could make things happen was well-deserved.284

When Mitchell was approached by an old friend, former Governor of

Kentucky Louis Nunn, for assistance on behalf of a client whose loan increase

request had been denied, he called Deborah Dean.285 Four months later, the

decision was reversed and the increase granted. Mitchell was rewarded with a

check for $8,613.94 from Nunn.286 Deborah Dean sent Mitchell a copy of the

internal HUD document announcing the favorable decision with “‘Daddy.

F.Y.I.’” scribbled on it.287 This success bred another. Nunn called Mitchell who

called Dean and a loan was granted. This was a far bigger deal and Nunn sent

Mitchell a check for $75,000.288 Still another call to Deborah Dean by Mitchell

yielded Mitchell $60,000.289

These transactions and many others like them triggered an investigation by

the Inspector General at HUD, which revealed “a five-year pattern wherein

hundreds of millions of dollars . . . were allocated ‘on an informal,

undocumented, and discretionary basis.’”290 A subsequent investigation by a

House subcommittee revealed “‘rampant abuse, favoritism, and

mismanagement.’”291 The Department of Justice intervened, and Deborah Dean,

283. Id. at 478-79.

A five-year criminal investigation of Mr. Pierce ended in 1995 when he issued a statement to

prosecutors acknowledging that “my own conduct failed to set the proper standard” at the housing

department.

Prosecutors and Congressional investigators uncovered extensive evidence to show how Mr. Pierce’s

aides, who said they had been acting on his orders, distributed millions of dollars in housing

subsidies to prominent Republican consultants at a time when the Reagan administration was sharply

reducing the agency’s budget. Under President Ronald Reagan, annual spending on subsidized

housing programs dropped to $8 billion from $26 billion, cuts that Mr. Pierce defended.

The subsidy programs that came under scrutiny by prosecutors had been intended to help encourage

the construction and rehabilitation of low-income housing.

Phillip Shenon, Obituary, Samuel R. Pierce Jr., Ex-Housing Secretary, Dies at 78, N.Y. TIMES, Nov. 3, 2000, at

B13.


285. Id.

286. Id.

287. Id.

288. Id. at 479-80.

289. Id. at 481.


291. Id. Mitchell was not the only former Republican office-holder who was able to influence HUD

officials.

Among the well-known Republicans who were found to have pressed Mr. Pierce for help were


339

like the man she considered a second father, became a target of a special

prosecutor in a national scandal. Had Mitchell lived, he would likely have joined

her at defendants’ table. He was designated “Unindicted Co-conspirator One,”

and Dean was “charged with conspiracy to defraud the government, acceptance

of illegal bribes (in dealings unrelated to Mitchell),” and perjury—thirteen counts

in all.292 Convicted on all counts, she was sentenced to twenty-one months in

jail.293

X. MITCHELL HIMSELF

I remember Earl Silbert, the first Watergate prosecutor, telling me, as we

walked down M Street in Georgetown, that Mitchell was very well-liked by those

who worked with him. That observation, so contrary to media depictions and

Mitchell’s taciturn, aloof bearing, is borne out by Rosen and indeed by everyone

else, including the lead Watergate attorney who prosecuted Mitchell; Mitchell’s

comrades in the Navy; his fellow prisoners; his colleagues in the Department of

Justice and in the Committee for the Re-Election of the President; and, for that

matter, me. President Carter’s Attorney General, Griffin Bell, a former federal

judge, sympathetically noted that Mitchell’s sentence was “‘more than [that of] a

bank robber’” and generously granted Mitchell medical furloughs for the

treatment of his hip and for a stomach condition that required surgery, and

granted him leave to visit his family after Christmas.294 For Special Prosecutor

Leon Jaworski, receiving the fifty-page indictment of Mitchell from the Grand

Jury was “‘a heart-rending moment’ . . . . [He] ‘had always liked John

Mitchell.’”295 And James Neal, who aggressively prosecuted Mitchell, exhibited

a genuine fondness for him. Two decades after the trial, Neal recalled Mitchell as

“‘a thoroughly delightful man.’”296 Mitchell had inscribed Neal’s copy of All the

President’s Men, a popular account of the events leading to the prosecutions:

“‘To one of the nicest guys I know unfortunately cast in the wrong spot at the

wrong time.’”297 “‘I was convinced,’ Neal wrote, ‘that [Mitchell’s] offenses

emanated not from an evil soul but from a misguided and foolish loyalty to the

president of the United States.’”298 Neal took the unusual step of writing to the

Parole Commission in 1978, urging Mitchell’s early release (which the

James G. Watt, the former interior secretary, and former Senator Edward W. Brooke, Republican of

Massachusetts, who both received large consulting fees for housing projects; and former Housing

Secretary Carla A. Hills, who received relief from the department for a legal client.

Shenon, supra note 283.


293. Id. at 483.

294. Id. at 462-63.

295. Id. at 421.

296. Id. at 432.

297. Id. at 420.



340

Commission denied).299 We see affection for Mitchell everywhere, including

from surprising figures. Even in prison, Mitchell made friends, among others “a

recidivist criminal serving time for transporting stolen merchandise across state

lines.”300

But Mitchell was not merely likable. He displayed a certain grace under

pressure. He was remarkably able to maintain equanimity, wit, and humor during

his long public ordeal. Following the reading of the jury verdict convicting him

of five felonies, he turned to his downhearted lawyer and said, “‘Don’t take it so

hard.’”301 Then he congratulated the one defendant who was acquitted and

comforted another.302 At the sentencing hearing for the defendants in United

States v. Mitchell, when John Ehrlichman’s attorney asked the court to permit

Ehrlichman to provide legal services to a tribe of Pueblo Indians in New Mexico

as an alternative to incarceration, Mitchell stage-whispered to his attorney: “‘If

they offer us Indians, turn ’em down!’”303 Exiting the courthouse, Mitchell

quipped: “‘It could have been a hell of a lot worse. They could have sentenced

me to spend the rest of my life with Martha.’”304 After a hippie interrupted his

press conference by calling Mitchell a fascist and U.S. Marshals were dragging

the youth from the room, Mitchell quipped, “‘It’s all right . . . . He wasn’t on the

jury.’”305 As Mitchell was leaving the courtroom, a doctor shook his hand. “‘If

you ever need a psychiatrist,’” he said, “‘I’d be glad to help.’ ‘If I ever need a

psychiatrist,’ Mitchell shot back, ‘I’ll plead guilty first.’”306

“‘Mitchell was the trial’s mystery man,’” Fred Graham commented on CBS

Evening �ews, “‘puffing his pipe, cracking occasional jokes, refusing to attack

Richard Nixon . . . .’”307 Nixon commented in his now famous interviews with

David Frost that Mitchell “‘never lets his emotions show. Except he does have a

quiver in his hand at times . . . .’”308 Nixon probably knew better. In private,

Mitchell acted like a man under extreme stress. During the later stages of

Watergate, he drank heavily, and his close friend, Fred LaRue, who dined with

him every night, sometimes put him to bed.309 LaRue worried that Mitchell

would crack under the strain of prosecutions and perhaps commit suicide.310

299. Id.

300. Id. at 458.

301. Id. at 438.

302. Id.

303. Id. at 441.


305. Id. at 256.

306. Id. at 257.

307. Id. at 439.

308. Id. at 470.

309. Id. at 378.

310. ROSEN, supra note 1, at 378. Martha Mitchell expressed similar concerns. John, she reported, was

devastated by his indictment. “‘He wouldn’t go out. He ate at his desk. He let his hair grow and wouldn’t

shave. . . . John didn’t want to see anyone. . . . He was drinking and taking tranquillizers. There were nights our

daughter Marty, and I, and the maid, had to drag him to bed.’” Id. at 241-42.


341

Everything was going wrong. Mitchell foresaw his future—prison, disbarment,

and ostracism. But Nixon was right in noting that Mitchell had great resilience

and fortitude and that he was loyal—to a fault, one might add.

XI. CONCLUSION

Rosen has lifted the veil on the events of Watergate. Drawing on fresh

sources and providing a penetrating analysis of events, his conclusion that it was

not Mitchell who approved the break-in at Watergate deserves respect and may

well trigger a rethinking of Watergate by historians. But as rich as his research is,

it still leaves Mitchell an enigmatic figure. We don’t understand how someone as

smart and seasoned as Mitchell would wind up disgraced. The stock explanations

do not run deep. Rosen reports that they “split along a clear fault line. There were

those who believed Mitchell’s great mistake was marrying Martha Mitchell and

those who believed it was allying himself with Richard Nixon.”311 Martha was

the leading proponent of the “blame-the-president” position and Nixon returned

the favor, as noted earlier, by laying Mitchell’s misfortune largely at her feet.312

Both have a point. I fall more in the “blame-Nixon” camp.

Nixon cast a long, dark shadow enveloping his top aides. They were

subjected to unceasing diatribes against his political opponents and the press.

Nixon saw himself surrounded by enemies. He told Henry Kissinger: “The press

is the enemy. The establishment is the enemy. The professors are the enemy,”

Nixon told Kissinger in a recorded Oval Office conversation on December 14,

1972.313 Nixon was a damaged man, angry, suspicious, vindictive, and

overflowing with resentment over perceived and real mistreatment. He retailed

his beleaguerment, his bunker mentality, to those around him, and they exhibited

a remarkable capacity for adopting this skewed perspective, sharing Nixon’s

disdain for the law and for playing by the rules. In this atmosphere, it is

unsurprising that along the way excesses would occur and poor judgment would

be exercised. The President set the table and others, lacking judgment and

inhibition, took seats.

Even though the White House tapes reveal that Nixon was unaware of

Liddy’s proposals and was stunned to learn of the break-in at the Democratic

Headquarters, it is hard to imagine Watergate occurring in any other president’s

311. Id. at 497.

312. Id.

313. E.g., Caroline Graham, “The Press, the Establishment, and Professors Are the Enemy”—Latest

Archive Recordings Reveal Depth of �ixon’s Paranoia, DAILY MAIL, Dec. 3, 2008, http://www.dailymail.

co.uk/news/worldnews/article-1091608/The-Press-establishment-professors-enemy--latest-archive-recordings-

reveal-depth-Nixons-paranoia.html# (on file with the McGeorge Law Review). The tapes were recorded

between November 1972 and January 1973, shortly after his re-election and just before the Watergate scandal

unfolded. More �ixon Tapes, Records Being Made Public, MSNBC, Dec. 2, 2008, available at http://www.

msnbc.msn.com/id/28012809. Combined, the items consist of nearly 200 hours of tape and 90,000 pages of text

documents. Id.


342

term. It may be an overstatement to say, as Samuel Johnson did, that “virtue is

uncommon in all the classes of humanity,”314 but Nixon’s cluster of advisors

seemed uncommonly willing to break the law. Mitchell’s makeup made him less

susceptible to Nixon’s world view, but he was not immune. Becalmed, Nixon

could be thoughtful, shrewd, and, with an eye to posterity, high-minded. At these

times, Nixon welcomed Mitchell’s cautionary counsel. But Nixon’s moments of

tranquility were momentary. Like a sponge, he reverted to his original

fixations,315 which enveloped malleable, ambitious men like Dean and Magruder,

extremists like Liddy, key advisors such as Ehrlichman and Haldeman, and, to a

lesser, but more costly degree, John Mitchell.316 When the Watergate

investigators finally got their hands on Mitchell, he hunkered down and

obdurately buried himself in a sea of denials, half-truths, and hair-splitting.

If Mitchell could have divorced his wife a few years earlier and been free to

focus on his governmental obligations, if he could have turned down his

appointment as Attorney General, or if he could have gracefully resigned once he

learned of the White House shenanigans, undertakings that the FBI and CIA

declined to perform, would it have served him well? If so, then one has to ask

whether he was capable of taking such actions. Again, it would seem so. But

perhaps this is just rear-view-mirror speculation. What does come through clearly

about John Mitchell is that he was not dour and stern or unfeeling, as his public

persona suggested. He was a thoughtful, caring, affable, humorous, witty

companion, well-liked by prisoners and his prosecutors, generous to a fault to

both of his wives, and devoted to the people with whom he worked and who

worked for him. He was somebody special, a dear man in many ways. But the

attractive qualities he exhibited—intelligence, perceptiveness, and balance—

were not consistently manifested in his public life.

Rosen closes the book on Mitchell’s life with an anecdote in which a friend,

over lunch one day, inquired of him, “If you had it to do all over again, what

would you do differently?”317 Mitchell responded by recalling an unannounced

office visit in 1960 from a man named Bobby Kennedy. Kennedy, Mitchell

claimed, was seeking Mitchell’s assistance to run his brother, Jack’s, presidential

campaign. Mitchell declined, and when Kennedy persisted, Mitchell reports

314. MEYERS, supra note 277, at 191.

315. Nixon was stung by President Eisenhower’s low opinion of him. Eisenhower saw him but a handful

of times during his eight years as Vice President and, when asked during the height of Nixon’s campaign

against John Kennedy to name one major idea of Nixon’s he had adopted during Nixon’s two terms in office, he

quipped, “‘If you give me a week, I might think of one.’” Eisenhower National Historic Site,

http://www.nps.gov/archive/eise/quotes2.htm (last visited Nov. 13, 2009) (on file with the McGeorge Law

Review).

316. Confronted by the stressful, career-threatening extended Watergate investigations and trials, his

behavior took a pathological bent in which, his aides reported, he ruminated in a rambling fashion, seeing

enemies everywhere. In his conversation, he lost focus and continuity in his conversation. See ROSEN, supra

note 1, at 349.

317. Id. at 497.


343

throwing him out of his office. “‘If I had it all over to do,’ Mitchell said with a

smile, ‘I’d run Jack Kennedy’s campaign.’”318 Rosen swallows this story whole,

wistfully treating it as something that might have been. More likely, it was

another tall tale, but unlike those of battlefield and sports heroics, perhaps it is

one to be treated gently, a reminder of sorts by a man long suffering and

disgraced: “Remember me. I was once somebody.”

I saw Mitchell one more time. It was after he had been released from

Maxwell. He was sitting in the back booth of a Georgetown restaurant, The

Guards, with Mary Gore Dean, and I was with a friend who was at the

Department of Justice when Mitchell was Attorney General. My friend walked

over to pay his respects and I joined him after a moment. Mitchell was cordial

and gracious in his reserved way and we chatted briefly. I have no recollection of

what pleasantries we exchanged, and I have no regrets over paying my respects.

Much about John Mitchell warrants respect. His congratulatory letter is back on

my office wall. I know that there is a case for taking it down; but there’s no

arguing with feelings, and, as of this writing, there it is.

318. Id. at 498.

Documents

The Making of the Attorney General: John Mitchell and the ... · The Making of the Attorney General: John Mitchell and the Crimes of Watergate Reconsidered ... who followed the breaking